The Supreme Court heard oral arguments this week on a number of cases that could completely upend the way federal agencies regulate virtually everything in the US. At issue is a legal doctrine called Chevron deference, which allows federal agencies to interpret laws intended to protect consumers, public health and the environment. Now a conservative supermajority on the Supreme Court appears poised to nullify or limit the scope of Chevron’s deference.
The edge spoke to legal experts about what’s going on and what the Supreme Court’s decisions on Chevron deference could ultimately mean for Americans. “The real question is: how far will they go?” says Jody Freeman, director of the Environmental and Energy Law Program at Harvard. “They could even overturn that precedent. And that can lead to great uncertainty and chaos.”
“They could even overturn that precedent. And that can lead to great uncertainty and chaos.”
What is the Chevron Doctrine?
Essentially, it allows judges to turn to federal agencies when it comes to figuring out how to implement a law if there are disputes over the interpretation of the language Congress has passed. The assumption is that the agency has more expertise in this area than a federal judge assigned to the case.
The practice existed long before it had a name, said Ian Fein, a senior adviser at the nonprofit Natural Resources Defense Council. This became known as the Chevron Doctrine after a 1984 case. Chevron USA, Inc. v. Natural Resources Defense Council (NRDC). The funny thing is that NRDC, an environmental group, actually lost the case, and the Supreme Court upheld a decision that favored Chevron. It allowed the industry-friendly Environmental Protection Agency of the Ronald Reagan era to cling to its own lax interpretation of the Clean Air Act.
But since then, Chevron’s respect has given agencies the power to take initiative on issues that legislation may not have caught up yet, such as climate change and broadband access. For example, it has sparked battles over how far the EPA can go in regulating greenhouse gas emissions under the Clean Air Act and how far the FCC can go in mandating net neutrality.
Why is the Supreme Court going to think about it now?
Despite initial support from conservative groups, Fein says the Chevron deference has recently become a target for industries pursuing a deregulation agenda. “There has been a steady rise over the past decade of concerted efforts to question and reject the doctrine,” Fein says. The edge. Around the second term of the Obama administration, Fein says, “We are beginning to see the idea of eliminating Chevron deference as a way to cut back on the ability of federal agencies to implement federal laws.”
Two cases have reached the Supreme Court that threaten the long-standing Chevron doctrine: Runner Bright Enterprises against Raimondo And Relentless, Inc. against Ministry of Commerce. Plaintiffs in both cases are challenging a rule that requires fishing companies to pay for the costs of observers they are legally required to bring on board their vessels to monitor their operations. They’re asking judges to overrule Chevron and are getting support from other industry groups ranging from Gun Owners of America to e-cigarette makers.
“It is quite difficult to overstate how widespread and fundamental this principle has been to the operation of our federal government.”
“Joe Biden – and his predecessors – have on several occasions used the broad authority given them by Chevron’s respect to target law-abiding gun owners,” said Erich Pratt, senior vice president of Gun Owners of America, last years in a statement. “Americans are fed up with one man with a pen pursuing our constitutionally guaranteed rights, and we urge the Court to strike down Chevron.”
If successful, they could force a total overhaul of how industries are regulated in the United States, taking power away from federal agencies and placing much more responsibility on federal courts.
“It is difficult to overstate how widespread and fundamental this principle has been to the functioning of our federal government,” Fein said. “It described the basic rules or the basis on which the system we have [operates] – of federal agencies that enforce laws and courts, they are the backstop.”
What happens if SCOTUS decides to topple Chevron?
“It would really unleash a kind of chaotic period where federal courts decide what they think all these laws mean,” Freeman says. The edge. “And that can lead to a lot of inconsistency and confusion among authorities and regulated parties.”
Freeman has a whole interview in The Harvard Gazette that shows how badly such a decision could screw up the courts:
Chevron doesn’t matter much to the Supreme Court, which largely ignores it. But it does matter to the lower courts, which continue to use their two-step test to manage a flood of lawsuits challenging interpretations of all kinds of authorities, from the most general to the most complicated. When the statute is not clear, courts consider whether the agency’s interpretation is sensible, well-reasoned, and consistent with the intent of the statute. If so, the agency wins. Without Chevron, federal judges could be bogged down in complex issues of statutory interpretation that require scientific, economic, or technological expertise. Policy choices better suited to agencies with investigative and information-gathering capabilities and obligations to consult stakeholders will increasingly be made by federal judges, who lack their expertise and do none of these things.
Even Trump-appointed Judge Brett Kavanaugh acknowledged during oral arguments Wednesday that throwing out Chevron’s deference could be a “shock” to the justice system, though he downplayed the long-term effects of that shock. He brushed it off, saying there are “shocks in the system every four to eight years when a new government comes into office, whether it is communications law, securities law, competition law or environmental law.” The New York Times reports.
While Chevron deference as we know it may not survive the 6-3 conservative supermajority on the Supreme Court, the justices may choose to set limits on when to grant deference, rather than throw out the doctrine altogether. “Either way, it’s a moment where, I think, it’s going to be harder for federal agencies to do the work that they need to do,” Freeman said. And when gridlock in Congress poses a major barrier to passing legislation, it often falls to federal agencies to take action.
So this is a big deal, huh?
YEP. There is much more at stake than catching fish.
“This will be a very important decision for the balance of power between Congress, the president and the courts. That’s why the stakes are so high,” says Freeman. “It appears that the Supreme Court is becoming more and more powerful relative to the other two branches. And we have to worry about that.”
The Supreme Court has made a series of decisions lately that weaken the power of federal agencies — most notably by reinforcing the “big questions” doctrine in a decision on West Virginia vs. Environmental Protection Agency. Under that doctrine, courts do not have to defer to federal agencies in cases of major national significance that Congress has yet to explicitly enact into law.
The Supreme Court is expected to rule on Chevron’s deference by the end of June.